Delhi District Court
Smt. Bittan Devi vs Sh. Rajinder Parshad on 30 January, 2012
IN THE COURT OF MS. NEHA PALIWAL, CIVIL JUDGE-06
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SUIT NO. 529/10/96
Unique Case ID no. : 02401C0008701996
In the matter of:-
1. Smt. Bittan Devi,
w/o Late Sh. Ram Chander.
2. Asha d/o Late Sh. Ram Chander.
3. Ajay Kumar s/o Late Sh. Ram Chander,
4. Vijay Kumar s/o Late Sh. Ram Chander,
5. Chanchal s/o Late Sh. Ram Chander,
6. Kumari Namita d/o Late Sh. Ram Chander,
7. Suraj s/o Late Sh. Ram Chander,
8. Chand Soni s/o Late Sh. Ram Chander,
9. Kumari Neelam Soni, d/o Late Sh. Ram Chander
through her mother, Smt. Bittan Devi.
All r/o house no. A-182, Mangolpuri,
Delhi-110083. ...Plaintiffs
versus
1. Sh. Rajinder Parshad
s/o Sh. Lahru
r/o M-1/14, Mangolpuri, Delhi.
2. Sh. Kanhaiya Lal,
s/o Sh. Lahru
r/o A-590, Mangolpuri, Delhi.
3. Mrs. Rajinder Parshad
w/o Defendant no. 1.
r/o M-1/14, Mangolpuri, Delhi.
4. Sh. Ramu, s/o Sh. Lahru
r/o A-588, Mangolpuri, Delhi.
5. Triveni
r/o M-608, Mangolpuri, Delhi. ...Defendants
Suit no. 529/10/96
Bittan Devi v. Rajinder Prasad Page 1 of 13
Date of institution of the suit : 12.03.1996.
Date of receipt of this case in this Court : 30.10.2010.
Date of reserving Judgment/Order : 11.01.2012.
Date of pronouncement : 30.01.2012.
JUDGMENT:-
1. This is a suit wherein the Plaintiffs are seeking the relief of mandatory and permanent injunction against the Defendants whereby they are seeking that a decree of mandatory injunction be passed against Defendant no.1 to 5 directing them to vacate the shop bearing no. M-1/14, Mangolpuri, Delhi (herein after known as the suit property), and to bring the shop into its original state/condition and a decree for permanent injunction be also granted whereby the Defendants be restrained permanently from bringing about any alteration/addition in the said shop or otherwise to change its basic structure.
2. Briefly as per the Plaint the case of the Plaintiffs is that they are the allottees of shop no. M-1/14, Mangolpuri, Delhi. The suit property was allotted to the Plaintiffs by DDA on 23.03.1977 vide possession slip no. 21969. The Plaintiffs have started running a school namely Viklang Sahita Samitti from the suit property. Defendant no. 1 was granted permission by the Plaintiffs to take shelter in night in the said shop and during the day time the shop was used for the benefit and use of Viklang Sahita Samitti. It is averred by the Plaintiffs that due to the riots in the year 1984 there was suspension in the activities of the school however, Defendant no. 1 continued to use the space as night shelter. It is averred by the Plaintiffs that Defendant no. 1 filed a civil suit against them which was dismissed vide judgment and decree of the Ld. Sub Judge dated 16.04.1994 in Civil Suit no. 256/87 wherein it was held that the Defendant no.1 has failed to Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 2 of 13 prove himself as a tenant. It is averred by the Plaintiffs that Defendant no. 1 is neither the tenant nor has a right to retain possession of the suit property and despite the revocation of permission he is continuing to use the suit property and thus his possession of the suit property is unauthorized and illegal. It is further averred that Defendants have brought about unauthorized and illegal construction and alterations in the suit property and have caused substantial damage and waste to the shop. They have removed the dividing wall of two rooms of the property and converted the same into one hall and also removed one door of the shop and replaced the same by a shutter on 02.03.1996. It is averred by the Plaintiff that Defendant no.1 to 4 are related to each other and they want to commit mischief in the property of the Plaintiff and if they are not restrained the Plaintiffs will suffer irreparable loss and injury. Thus, the Plaintiffs have prayed that their suit be decreed.
3. Written Statement was filed on behalf of Defendant no.1 ,2 and 4 wherein preliminary objections were taken that the Plaintiffs have not approached the Court with clean hands and the suit of the Plaintiffs is not maintainable as it is a suit for eviction but is brought under the garb of mandatory injunction. In their reply on merits the Defendants have denied the contentions of the Plaintiffs categorically and it is their case that the Defendants have came to know that the suit property does not belongs to the Plaintiffs and the Plaintiffs have manipulated and forged ownership documents of the property and through these documents they are claiming ownership over various plots. The Defendants admitted that the suit property is a corner shop and measures 13' x 8' however it is their case that Defendant no. 1 was a tenant in the premises however, now he Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 3 of 13 has came to know that the possession slip of the Plaintiff is forged and fabricated. It is further their case that Defendant no. 1 did make necessary amendments in the suit property as the door was very weak and feeble and would have collapsed at any time. It is further admitted that the suit for permanent injunction was filed by Defendant no. 1, however, the same was dismissed in default on 15.02.2000. Thus, the Defendants have prayed that the suit of the Plaintiff be dismissed.
4. Replication was filed by the Plaintiff to the written statement of the Defendants wherein the Plaintiff has denied the preliminary objections taken by the Defendants in the written statement and has categorically denied the case of the Defendants and has reaffirmed the contents of the plaint in its entirety and it is further their case that Defendant no. 1 is neither the tenant nor a licensee in the suit property therefore Defendant no. 1 cannot re-agitate this issue once again in view of the principles of resjudicata. It is further averred that an application u/o 39 rule 2A has been filed against the Defendants as the Defendants have violated the status quo orders of the Court and has brought about unauthorized and illegal construction and alteration in the shop in dispute. Thus, the Plaintiffs have prayed that their suit be decreed.
5. In the present case in hand despite service as no written statement was filed by Defendant no.1 to 5, vide order dated 14.11.1996 the Ld. Predecessor Court allowed the application of the Plaintiffs u/o 39 rule 1 and 2 and directed the Defendants not to bring about any change in the suit premises as shown in the site plan by way of addition, alteration and not to damage the suit property by way of a positive act during the pendency of the suit. Vide that same order the Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 4 of 13 defence of the Defendants was also struck off.
6. An application u/o 39 rule 2A was filed by the Plaintiffs on 26.08.97 however, vide order dated 11.01.2000 as none was present on behalf of the Plaintiffs the suit of the Plaintiffs was dismissed in default. Vide order dated 24.03.2000 the application of the Plaintiffs u/o 9 rule 9 was allowed subject to cost and the suit was restored to its original number and the matter was fixed for filing of written statement.
7. In the present case in hand though there was no specific order of recalling the order dated 14.11.1996 whereby the defence of the Defendants was struck off however, as thereafter vide order dated 24.03.2000 the matter was fixed for filing of written statement and written statement filed by Defendant no. 1,2 and 4 was also taken on record and issues were framed thereupon, in view of the same it is held that order dated 14.11.1996 was impliedly revoked and the written statement filed is to be read and considered. Further even no objection was raised by the Plaintiffs to the said order and thus the Plaintiffs has also acquiesced to the same. No written statement was filed by Defendant no.3 and 5 and therefore they have claimed no defence in the present matter.
8. Issues were framed in the present matter vide order dated 03.10.2001 which are as under:-
1. Whether the Plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
2. Whether the Plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP.
3. Relief.
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9. Vide order dated 03.09.2004 it was held by the Ld. Predecessor Court that the evidence of the Plaintiff recorded in the suit will also be considered for the disposal of the contempt application. An application u/o 22 rule 3 was moved by the Plaintiff which was allowed vide order dated 03.03.2005 as Plaintiff no. 2 has expired.
10. Plaintiffs have examined 5 witnesses in support of their case. PW-1 being Plaintiff no. 2 Sh. Ram Chander, PW-2 being Plaintiff no. 1 Smt. Bittan Devi, PW-3 Sh. Dalel Singh, Head Constable, North West, PS Mangolpuri, Delhi, PW-4 Sh. Mohar Pal, UDC, MCD, PW-5 Sh. Rajender Kumar, LDC, Building Department, Najafgarh, PW-6 Sh. Fakirya Ram, LDC from Slum and JJ Department, Jawala Puri. Defendants in support of their case have examined Defendant no. 1 Sh. Rajender Prasad as DW-1, DW-2 Sh. Ranbir Singh, UDC, Slum and JJ Colony, MCD.
11. PW-1 in his examination in chief has exhibited and relied upon the following documents:-
1. Ex. PW1/1 - Photocopy of the possession slip in his name dated 23.03.1977.
2. Ex. PW1/2 - Copy of the judgment of the Court of Sh. V.K. Bansal, Ld. Sub Judge dated 16.04.1994.
3. Ex. PW1/3 - Site Plan.
4. Mark A and B - Complaints to SHO, Mangol Puri.
12. PW-2 in her affidavit has exhibited and relied upon the following documents:-
1. Ex. PW2/1 - Possession slip no. 21964 dated 23.03.1977 in favour of Sh.
Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 6 of 13 Ram Chander, Plaintiff no. 2 (OSR).
2. Ex. PW2/2 - Certified copy of the order and judgment of the Court of Sh. V.K. Bansal, Ld. Sub Judge dated 16.04.1994 in Civil Suit no. 256/87.
3. Ex. PW2/3 - Decree Sheet.
4. Ex. PW2/4 - Statement of Plaintiff no. 2 in the police station dated 02.03.1996.
13. PW-3 in his examination in chief has stated that document Ex. PW2/4 is bearing the seal of the police station at point 'A'. He has also exhibited as PW3/1 the document addressed to Zonal Engineer, Building Department, DMC, pertaining to unauthorized construction written by SHO, PS Mangolpuri. PW-4 has stated that the letter of SHO PS Mangolpuri dated 28.04.1997 was received by the office and he has exhibited as Ex. PW4/1 diary register of DC/NGZ office whereby the letter was sent to EEII vide no. 2837 DC/NGZ dated 20.05.1997. PW-5 Sh. Rajender Kumar, LDC, Building department has stated that as per the misalbandh there is no booking of unauthorized construction with respect to the suit property. Though PW-5 has not produced the misalbandh record on the date of his deposition he brought the record on 18.11.2005 and filed the photocopy of the same in the file as per which there is no booking of unauthorized construction in respect of the suit property. PW-6 has exhibited as Ex. PW6/1 the possession slip no. 21969 dated 23.03.1977 in the name of Sh. Ram Chander, Plaintiff no. 2 herein and has deposed that the shop was alloted to Sh. Ram Chander in place of Jhuggi in Basant Nagar.
14. DW-1 Sh. Rajinder Prasad in his affidavit has relied upon and exhibited the following documents:-
Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 7 of 13
1. Ex. DW1/A- Notice for recovery of license fees dated 04.03.2005 addressed to Sh. Kali Charan.
2. Ex. DW1/B- Electricity Bill in the name of Defendant no. 1.
15. DW-2 Sh. Ranbir Singh, UDC, Slum and JJ Colony, MCD has again exhibited in his examination in chief Ex. DW1/A and in his cross examination has exhibited as Ex. DW2/1 copy of the original possession slip in the name of Sh. Kali Charan dated 14.07.1976 bearing no. 9411.
16. Issue wise findings in the present case are as under:-
Issue no. 2:- Whether the Plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP.
17. The onus to prove this issue was on the Plaintiffs.
18. In order to discharge the onus of this issue the Plaintiffs have examined six witnesses. It is the case of the Plaintiffs that they have permitted Defendant no.1 to stay in the suit premises without charging any rent from him and the premises was given to him only for the purpose of giving him shelter and thus they have prayed for relief of mandatory injunction against the Defendants. As per the Plaintiffs the Defendant was in permissive use of the said premises. Ex. PW2/2 is the certified copy of the judgment of Ld. Sub Judge in CS no. 256/87 which was instituted by Defendant no.1 against the Plaintiffs wherein while deciding the suit for permanent injunction and after hearing the parties on merits it was held by the Ld. Sub Judge that Defendant no.1 has failed to prove that he is a tenant in the suit premises and the Plaintiffs have failed to prove that he is a licensee in the suit premises and therefore the suit of Defendant no. 1 was dismissed.
Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 8 of 13
19. In view of the findings in that suit which have become final and would operate as resjudicata over the parties neither the Defendant was able to prove that he is a tenant in the suit property nor was the Plaintiffs able to prove that he is a licensee in the suit property. Thus, at best the Defendant could be said to be in an unauthorized occupation of the property and the Plaintiffs have to bring a suit for possession of the suit premises instead of the suit for mandatory injunction. Though the mere nomenclature of the suit would not strike at the root of the matter yet the Plaintiffs would be bound to pay the requisite Court fees for the relief of possession as less Court fees has been paid in the present matter by asking the relief of mandatory injunction. It has been already held between the parties that Defendant is neither the tenant nor a licensee and the possession of the Defendant over the said premises is also admitted by the Plaintiffs.
20. The Plaintiffs have in support of the ownership of Plaintiff no.2 over the suit property have examined as PW-6 an official from Slum and JJ department who has exhibited as Ex. PW6/1, the original possession slip in the name of Sh. Ram Chander, Plaintiff no. 2 herein, dated 23.03.1977. The said witness has also deposed that the shop was earlier allotted to one Sh. Kali Charan however it was re allotted to Sh. Ram Chander s/o Sh. Kalka Prasad. The Defendants have tried to assail the title of the Plaintiffs over the suit property and it is their case that Plaintiff no. 2 and after his death the LRs of Plaintiff no. 2 are not the owners of the property as the property was allotted to one Sh. Kali Charan and not to Plaintiff no. 2 and has in support exhibited as Ex. DW1/A notice for recovery of license fees and as Ex. DW1/1 possession slip, both in the name of Sh. Kali Charan. Though DW-2 who is another official from Slum and JJ department, Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 9 of 13 MCD has stated that the document Ex. DW1/A was issued by the department however he has not been able to show the reference of the document in the office of the department. Further more though he has also exhibited as Ex. DW2/1 original possession slip in the name of Sh. Kali Charan dated 14.07.1976 even PW-6 Sh. Fakirya Ram, LDC from Slum and JJ Department has in his cross examination deposed that the property was earlier allotted to Sh. Kali Charan and it was re allocated to Sh. Ram Chander and thus balance of convenience tilts more in favour of the Plaintiffs and the Plaintiffs have been able to show the title of Plaintiff no. 2 over the suit property. Further more in the earlier suit filed by Defendant no.1 against the Plaintiffs the Defendant has claimed himself to be a tenant under the Plaintiffs. In view of the provisions of section 116 of the Indian Evidence Act as the Defendant has claimed himself to be a tenant though his plea was declined by the earlier Court of competent jurisdiction, he cannot be permitted to deny the title of the Plaintiffs over the suit property. In view of the same as the Plaintiffs have been able to prove the ownership of Plaintiff no. 2 over the suit property and as he has expired after his death the ownership of his legal representatives over the suit property and as the Defendant is in possession of the suit property as the unauthorized occupant having no right, title, interest over the suit property thereupon the Plaintiffs are entitled for the relief of possession against the Defendants and therefore the Defendants are bound to hand over the vacant and peaceful possession of the suit property to the Plaintiffs however, only after the Plaintiffs pay the requisite Court fees for the relief of possession.
21. The Plaintiffs have further prayed for the relief of mandatory injunction Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 10 of 13 praying that the Defendants be directed to bring the suit property in its original condition. It is the case of the Plaintiffs that Defendants have carried out unauthorized construction over the suit property and have removed the dividing wall of the two rooms and had converted the same into one hall and had removed the one door of the property and had replaced it by shutter on 02.03.1996. The Defendants in their pleadings have stated that Defendant no. 1 had make necessary alterations in order to prevent the situation of the collapsing of the door as the same was week and feeble. Defendant no. 1 further admits that he was penalized by the concerned Metropolitan Magistrate of the area for making the unauthorized construction. Plaintiffs in support of their case of unauthorized construction have exhibited as Ex.PW2/4 and Mark B the statement of Sh. Ram Chander Saini, Plaintiff no. 2 dated 02.03.1996 wherein it is averred that the Defendant was trying to remove the door which the police has stopped. They have further examined as PW-3 Sh. Dalel Singh, Head Constable who has deposed that statement of Plaintiff no. 2 Ex. PW2/4 bears the seal of the police station. He further deposed that document Ex. PW3/1 which is the photocopy of the letter written by SHO, PS Mangolpuri to the Zonal Engineer, Building department, DMC is recorded in the diary register though in the cross examination the witness has stated that the said letter is not bearing the stamp or the seal of the police station and nor is the copy of the letter in the possession of the department. PW-4 Sh. Mohar Pal, UDC, MCD, has also as per record deposed that letter Ex. PW3/1 was received by the Office of Engineering Department however, in his cross examination he has deposed that no such letter is in the possession of the department. PW-5 Sh. Rajender Kumar, LDC, Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 11 of 13 Building Department, Najafgarh, has stated that as per the misalbandh there is no booking of the unauthorized construction in respect of the suit property and he has also filed on the next date of hearing that is on 08.11.2005 the photocopy of the misalbandh. In view of the said pleadings and the evidence adduced the balance of probabilities shifts in favour of the Plaintiffs that Defendant has carried over unauthorized construction over the suit property and thus the Defendant is directed to restore the suit property to its original condition as allotted by the DDA to Plaintiff no. 2.
22. Thus, this issue is decided accordingly.
Issue no. 1 : Whether the Plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
23. The onus to prove this issue was on the Plaintiff.
24. In view of the findings in issue no.2 as it is held that unauthorized construction over the property was carried out by the Defendant and that Defendant is an unauthorized occupant, the Defendant is also restrained from bringing about any alteration or addition in the suit property or to change the basic structure of the suit property.
25. Thus, this issue is decided accordingly in favour of the Plaintiff and against the Defendants.
Issue no. 3:- Relief
26. In view of the findings in issue no. 1 and 2 a decree for possession is passed in favour of the Plaintiffs and against Defendants no.1 to 5 whereby the Defendants are directed to hand over the peaceful and vacant possession of the suit property that is shop bearing no. M-1/14, Mangolpuri, Delhi to the Plaintiffs.
Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 12 of 13 The Defendants are further directed to bring the shop to its original condition and are restrained permanently from bringing any alteration or addition in the shop or to change the basic structure. However, the present decree for possession would be executable only after the Plaintiffs file the requisite Court fees for the relief of possession in the Court.
27. Costs of the suit are also awarded to the Plaintiff.
28. Decree sheet be prepared accordingly.
29. File be consigned to record room.
Announced in open court on the 30th day of January, 2012.
(Neha Paliwal) Civil Judge-6 Delhi/30.01.2012 Certified that this judgment contains 13 (thirteen) pages and each page bears my signature.
(Neha Paliwal) Civil Judge-6 Delhi/30.01.2012.
Suit no. 529/10/96 Bittan Devi v. Rajinder Prasad Page 13 of 13